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I. Introduction
Defining that which is to be considered to be within the domain of cultural
property, and thereafter, how it is to be treated is a difficult task. Of great import,
however, is to consider the breadth of social, political, economic and other
influences within the country that is the subject of investigation. The purpose of
this lecture is to investigate, consider and compare the various influences, both
historical and contemporary, in Japan and in the United States.
II. The United States
When measured by the temporal standards of the world community the United
States is a relatively young country, however, it does possess a considerable
tradition promoting the arts and favouring the protection of cultural property. Its
perspective has a distinct character with a visage that is an amalgam of various
and sometimes competing philosophies.
Due to the political history of the United States, its preferred capitalist
economy, and its strong tradition of private property, most of its laws focus on
securing to citizenry the economic value of not only their own creative efforts but
also of those of other individuals that they might acquire in the course of free and
open market exchange. One might look to the U.S. Copyright Act as an example
of this perspective.
Copyrights
The U.S. Constitution enables Congress “To promote the progress of
science and the useful arts, by securing to authors and inventors the exclusive
right to their respective writings and discoveries.” The first Congress passed the
initial Copyright Act in 1790; the current Copyright Act was promulgated in 1976.
It is through the Copyright Act that the United States promotes the creation of
innovative intellectual work products and secures the economic value of such
efforts to authors. Two assumptions are at the foundation of the Copyright Act:
1. that it is to the advantage of an enlightened society to encourage creative
additions to the resource of the public domain; and 2. that unrestrained and
unimpeded replication of intangible intellectual and creative products is not in the
best interests of the community.
It is the general citizenry of the U.S. and not individual creative persons,
however, who are the actual and direct beneficiaries of copyright. The basic
philosophy of copyright is utilitarian. It is through the vehicle of individual effort
that the public domain is enriched, and it is presumed that the greatest
productivity will likely result if persons are given an incentive to create.1 That
incentive is the right to exploit certain economic advantages.
The philosophy supporting the Copyright law is not that a creator has a
natural right to the fruits of his labors.2 The “sweat of the brow’ label, often given
1
In accord, Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663, 678
(1986):
“The purpose of federal copyright protection is to benefit the public by encouraging works in which it is
interested. To induce individuals to undertake the personal sacrifices necessary to create such works,
federal copyright extends to the authors a limited monopoly to reap the rewards of their endeavors.”
2
“The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” . . .
However, it is “intended definitely to grant valuable enforceable rights to authors, publishers, etc., without
burdensome requirements; “to afford greater encouragement to the production of literary (or artistic) works
of lasting benefit to the world.” . . .
to this justification for granting a property interest to creative persons, was
specifically rejected by the U.S. Supreme Court in the recent decision of Feist
Publications, Inc. v. Rural Telephone Service Company, Inc.3 Furthermore, and
of significant import, U.S. Copyright Law provide only a limited protection of
Author’s Rights (the Moral Rights of authors).4 It is this choice of principle that
distinguishes U.S. Copyright law from the Copyright Law (and other Intellectual
Property Laws) in Japan. Copyright Law in the United States essentially protects
economic interests.
Other Laws and Principles
As a supplement to this condition, the general laws of the U.S. also tend
to discourage monopolies and the concentration of wealth, including that which is
artistic. These principles tend to meld and to promote the commodification of
human effort, and may have the unfortunate consequence of treating many
artistic work products, particularly those produced domestically, as pedestrian
forms of fungible property. Perhaps more problematic, this phenomenon can
occur notwithstanding that a particular item might, in fact, possess unique cultural
value. As a result, the preservation of creative expression, may not always be
considered paramount in national policy. It is the benefit that such activity
contributes to the public domain, writ large, that is of the greatest importance.
“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the
conviction that encouragement of individual effort by personal gain is the best way to advance public
welfare through the talents of authors and inventors . . . “
Mazer v. Stein, 347 U.S. 201, 219 (1954).
3
499 U.S. 340 (1991).
4
17 U.S.C. Section 106A.
Simultaneously and due, perhaps, to the pluralistic social imperatives that
abide in U.S. culture, many institutions, both private and public, tend to expound
a profound respect for small groups of people, who, through their struggles, have
made significant contributions to the ethos of America. One could make the
observation that America takes great pride in being characterized as a land of
opportunity. This fundamental sentiment has moderated what could otherwise
be a rather cold and clinical architectonic of a market economy, and it has helped
to form a commitment to highlight and conserve at least select examples of U.S.
culture and ethnography. As such, particular sensitivity to this preference has
given rise to vehicles through which the cultural, political and social seeds that
have been sown might be preserved and cultivated for future generations. For
example, through the development of programs that strive to preserve the
integrity of Native American ancestry, honour the legacies of such important
public figure as George Washington, Abraham Lincoln and Martin Luther King,
Jr., laud the sacrifices of select groups like those that fought to eliminate the
ravages of slavery, and conserve our abundant and unique natural resources,
some efforts have been made to promote a rich harvest of our cultural and
ethnographic heritage.5
Mediating between the sometimes competing principles of egalitarianism and
an economic imperative has not always been easy. Many institutions in the
United States, for example, have struggled to balance their priorities. While
5
The National Park Service has developed an interesting collection of resources considering cultural
groups in the U.S. See, http://www.cr.nps.gov/cultural.htm
trying to accept responsible stewardship of artistic and cultural artifacts, they are
often confronted with the realization that to be successful they must also view
themselves as in the business of entertainment.
The resulting tension between custodial responsibilities and being perceived
as a business has sometimes affected the way cultural properties are
categorized and treated.
III. Japan
Japan has a long and venerable history of protecting that which it
considers as cultural property. In addition, the United States and select
European countries have contributed some influence to the development of
cultural property policy in Japan. The lecture traced the Western influence
beginning in the Meiji Period, continuing through the late 1940’s to the current
day, and it noted the contributions of Edward Morse, Ernest Fenollosa, Okakura
Kakuzo, Langdon Warner and others as well as described the various laws
promulgated.6 Thereafter, and as an example of comparison, attention was
directed to Japan’s Copyright policy.
Copyrights
The history of Japanese copyright law was detailed beginning with the
Publishing Ordinance of 1869. During the course of the discussion, the
amendment to this ordinance in 1875 was noted wherein the word “hanken,”
meaning copyright was adopted for the first time. What could be considered
6
For a full discussion of this subject see, Geoffrey R. Scott, The Cultural Property Laws of Japan: Social,
Political and Legal Influences, Pacific Rim Law & Policy Journal 315 (2003).
Japan’s first modern Copyright Act was enacted in 1899. This Act was drafted by
Rentaro Mizuno who, of import eliminated the word “hanken” and instead
introduced the term “chosakukan,” literally meaning authorship right. This
precipitated a discussion of Moral Rights, their importance in Japanese
Copyright, their origin in the influences of France and Germany, and the
distinction between the treatment of Moral Rights in Japan and the U.S.
Finally, the lecture observed that as of January 6, 2001, the administration
of copyright matters was transferred from the Ministry of Education to the newly
established Ministry of Education, Culture, Sports, Science, and Technology. In
addition and pursuant to the Act to Enforce Laws Relating to the Reform of
Central Government Agencies, the name of the advisory council was changed
from the Copyright Council to the Council for Cultural Affairs.7 The lecture
concluded by suggesting that as a matter of policy, it might be proper to consider
that copyrights (and perhaps other forms of intellectual property) were to be
considered cultural property in Japan to a greater extent than might be the case
in the U.S. where economic principles pervaded their conformation and
enforcement. In the end, these underlying and fundamental perspectives might
influence differing outcomes in the two countries that should be taken seriously.
7
Law No. 160, 1999.